Miami Heat Owner Sues Blogger & Google Over 'Unflattering' Photo

from the this-isn't-going-to-end-well dept

What is it with super rich sports owners and SLAPP suits? Remember Redskins owner Dan Snyder? Well here's a situation that seems even more ridiculous. Ranaan Katz is a minority owner of the Miami Heat, who just won the NBA championship. You might think he'd be pretty happy right now. Instead, he's suing a blogger and Google, claiming a copyright violation over of an "unflattering photo." Seeing as the photo in question is now quite newsworthy, here it is (and we're happy to explain fair use theories to Katz's lawyers, if they'd like):

The full story is even more ridiculous as you dig into the details. It turns out this is the second time that Katz has gone after this blogger. The first time was for defamation. For what? For running a blog that talked about Katz and his company... and, from the sound of things, posted legal documents that apparently Katz didn't want posted.

Where it gets really bizarre is the massive overreach on the defamation side of things. Because the bar for defamation on a public figure it quite high, Katz's lawyers claim that he's not a public figure -- despite being an owner of the Miami Heat, despite being a well-known successful real estate developer, and despite the fact that there's a street named after him and an "official day" in his honor. Instead, his lawyers have argued that getting the press to report on Katz's legal overreach is an attempt "to make Katz a public figure" even though he clearly is one and has been one. Either way, the blogger, represented by Marc Randazza, responded strongly to the ridiculousness of Katz' original lawsuit. You can see that response below, calling out the fact that a demand for an injunction against any future publication on the blog (as Katz requests) is clear prior restraint and based on no accepted legal theory in a defamation case.

Separate from that lawsuit, it looks like Katz and his lawyers have now tried a second approach, which appears to be an attempt to use the DMCA to censor. He claimed that the "unflattering image" above violates his copyright. A DMCA takedown was apparently issued to Google, who refused to comply. So now both the blogger and Google have been sued. Of course, it's unclear to me how he even holds the copyright in the photo, since he didn't take it. Either way, given the previous actions in the case, it certainly feels like this is a SLAPP-style suit, filed just to be a nuisance to the blogger who didn't fold under the defamation claims (and yes, to Katz's lawyer, that's an opinion). Update: I've added the filing in the copyright lawsuit below, which adds one other detail: the photograph is not registered for copyright in the US. Katz's lawyers point out that since the photo was originally from Israel it doesn't need to be registered, which is true, but could limit the effectiveness of any lawsuit. Separately, according to Randazza, Katz claims to have had the copyright in the photo assigned to him from the original photographer. None of that changes any of the analysis here about the lawsuits in question.

Of course, all this has really done is activate the Streisand Effect, and get a lot more attention to Katz, to the lawsuits, to the blog and, of course, to the photo itself. You would think that someone with so much money and business success would have thick enough skin to know how to ignore such things. In the meantime, Randazza has pointed out how bizarre it is to go from suing an individual blogger to adding one of the largest companies in the world to the fight on the other side, for no good reason:

My guess is that their strategy is this: If you keep whiffing against a small time blogger, you might as well then just pick a fight with one of the biggest companies in the world. Sit back and get your popcorn and watch how this one works out. I want to thank Mr. Katz for bringing in an 800 lb gorilla to help me in his unsupportable SLAPP suit.

We have yet to speak to Google's lawyers about this case, but we expect that they will be receptive to standing up for the First Amendment along with us.

Sometimes I think there should be mandatory training on the Streisand Effect before one is allowed to become a lawyer.

"In the meantime, Randazza has pointed out how bizarre it is to go from suing an individual blogger to adding one of the largest companies in the world to the fight on the other side, for no good reason"

It's simple. The situation has gone from stage 1: The Streisand Effect, to stage 2: The Carreon Effect.

(I just checked. There is a wikipedia article for the Streisand Effect. Someone should create an article for the Carreon Effect once the Carreon v. the world lawsuit concludes.)

Re: "the carreon effect"

I think it is unfair to call it the "Carreon Effect" -- not just because I still (please forgive me for this) like Chas. But, because the effect that Carreon is experiencing is one that already has a name -- it is named after the guy who already sued the entire internet.

Re: Who owns the photo copyright?

It's already newsworthy and any doctoring would be transformative for the purpose of parody or satire. And it would increase the market for the original so people could compare the original with the altered versions to see what changed. IANAL, but I think it's fair use to play with the photo.

Re: Re: Ha ha

Nice. Covering up his entire face does make the picture more flattering.

It's interesting that in the filing he claims:

Katz is the owner, by assignment, of all right, title and interest, including all copyright rights, in and to the following image

Did he really buy the copyright of the image, from the newspaper just so he could issue this dmca notice? If so, maybe the dmca takedown is valid. Pathetic and sad, but possibly valid.

Wait a sec ... It looks like the image on the blog is not even stored on the blog servers. The img link points to the haaretz newspaper site where the image was first published. If Katz really did go to the trouble of buying all rights to the image from Haaretz, maybe he should be asking Haaretz to take it down, not the blogger.

Re: Re: Re: Ha ha

Wait a sec ... It looks like the image on the blog is not even stored on the blog servers. The img link points to the haaretz newspaper site where the image was first published. If Katz really did go to the trouble of buying all rights to the image from Haaretz, maybe he should be asking Haaretz to take it down, not the blogger.

Re: Ha ha

How about the fact that he is an ugly son of a bitch? Can ANY photo of this mug be "flattering"? If he is going to sue over this then he should sue anyone who ever takes a photo of him. (That is if it doesn't break their camera!)

That one claims that "to most Americans" I'm the guy who came up with that word. That seems like a massive exaggeration. But at this point, I think it's pretty fair to say that the term has taken on quite a life beyond me.

Re: You could even teach the class on it, since you're the only one that uses the term anyway.

Re:

You could even teach the class on it, since you're the only one that uses the term anyway.

Wow, I guess trolls really DO occupy an alternate reality. Just FYI, Anonymous Troll, I've seen the Streisand Effect referenced on Consumerist and Slashdot and Popehat and Penny Arcade and TvTropes and probably about a hundred other sites I can't recall off the top of my head.

Re:

people with lots of money, the 1%, wouldn't ever get this but seeing people with a different expression than what you're used to seeing is a really good thing (even if it's not 'flattering' for the person in the picture) b/c it humanizes them. That means it makes them seem less like the rich asshole who blows the average person's annual salary in a single night at the bar and more like someone they might actually know (or at least like a real person). The worst part is that no one cares what that guy looks like. Maybe the other people in his 1% circle would jibe him about it a little but guys like this must assume that if any picture is published anywhere it will be seen by over 300,000,000 people..

Intended Consequences?

Of course, it's unclear to me how he even holds the copyright in the photo, since he didn't take it.

If Katz didn't authorize the photo and he didn't imply it was ok to take the photo by doing such as posing for it or saying "cheese" then, technically he holds just as much copyright as the person who toke the photo. None the less what the blogger did was legal, assuming he was using to comment on Katz.

Re:

If Katz didn't authorize the photo and he didn't imply it was ok to take the photo by doing such as posing for it or saying "cheese" then, technically he holds just as much copyright as the person who toke the photo

Re:

Uh...no. That simply isn't true. Copyrights in photography are held by whoever held the camera. Otherwise, you'd have a situation where someone takes a photo of a crowd of thousands of people, and according to you then, each one of those people would hold a copyright claim.
Copyright law does not mention posing or saying cheese.

Re:

Unless it was a work for hire ONLY the photographer holds the copyright on the photograph.. Not the subject, not the printer, not the anti-techno-god of soul stealing, not the person who said "say cheese" NO ONE EXCEPT THE PHOTOGRAPHER!

This is a basic concept.. The creator (photographer) of the artwork owns any and all copyright in the artwork.

And no-matter what some moronic Herp Derp looking guy with his tongue hanging out his arse (oops face) thinks this will ALWAYS be the case.

It's not a hard legal concept this, quite easy without any latin phrases even and is even universally applied.

Re: Re:

Very true. He would have a claim if someone had photographed him with a telescopic lens in his home. In many cities you could captured on camera a couple dozen times a day and it is legal because in public there is no expectation of privacy. You can be seen or photographed by anyone. Right or wrong celebrities have even fewer rights than regular people.

Since anyone can be caught in these "unflattering" poses like 2000 times per day, I wonder if the streisand effect will result in many more of these types of photos on this particular individual. In fact, in pure entrepreneurial spirit, on could in fact capture such photos and try to sell the subject the copyrights. That way, any use of said photo would have an actual DMCA basis.

Actually...

In law school, one of my profs made exactly this point. To paraphrase:

"You need to look at the interests of the client to determine if litigation is really the answer. If you have an employee suing someone who fired them, they might really want a good reference, and you might be able to get that with just a polite phone call. And if someone is out there publishing embarrassing but true details about your client, and he wants them to stop, a lawsuit is often the last thing you want to do. It puts the details into the public record, and makes it easy for journalists to report them without running afoul of any laws themselves--they can just report that someone else is saying something. It also makes it vastly more likely to hit the news. That's the time to send a polite letter asking for them to help you out, not to go nuclear.

And above all, remember that you can always go nuclear /later/, unless you're up against a limitations period. But you can't lead off by being aggressive and then try to play nice You've already blown the opportunity at that point."

Unflattering?!

Let me see now, it's an entirely normal human reaction to lightly bite or chew the tongue when a human is deep in thought or under some form of stress. Stress, like, for example, some point in the last 5 or 10 minutes before his team won the NBA championship it was bought to get off the shelves of the private display rooms at Harrods.

I suppose he'd rather be portrayed as totally emotionless than a normal human being?

In the meantime, Randazza has pointed out how bizarre it is to go from suing an individual blogger to adding one of the largest companies in the world to the fight on the other side, for no good reason

It's dumb to add one of the largest anythings in the world to the other side of a fight, but hardly unprecedented. Remember Operation Barbarossa?

Sometimes I think there should be mandatory training on the Streisand Effect before one is allowed to become a lawyer.

Okay, a client comes in, and says "I want to sue ... for ...". You explain the Streisand Effect, the law, etc. The client says "I STILL want to sue ... for ...".
An attorney can say "Go get another attorney", or "Well, okay, maybe a jury or judge ... and that is your right, but I really advise against it". The client says "I STILL (you get the drift)".
Then the blogs, in their infinite wisdom (???) say "Lawyers ought to know better".
I wonder if they will ever find intelligent life?